On December 2, the U.S. Supreme Court heard oral argument in a takings case from Florida—Stop the Beach Renourishment, Inc. v. Florida Dep’t of Envtl. Prot., No. 08-1151. Our Section’s Condemnation Committee has convened a couple of conference calls for Section members interested in the case. If you wish to join future calls, please contact Committee Chair Robert H. Thomas at rht@hawaiilawyer.com.
The fault line between the two sides is whether or not the Court should recognize a new category of takings—a “judicial taking.” Petitioners challenged the Beach and Shore Preservation Act (Fla. Stat. ch. 161) and the beach renourishment project undertaken in front of their homes in Walton County on the Florida Panhandle. The Act authorizes state-sponsored renourishment projects and commits the state to maintain beaches restored and expanded by such projects. From the petitioners’ perspective, the renourishment project was undertaken with the
singular goal of replacing a private beach with a public beach without paying compensation by creating an additional 75-foot wide public beach seaward of the [mean high water line] surveyed on September 7, 2003. [The petitioners] objected to this massive sand pumping exercise to create a new public beach because they did not want or need the additional sand.
Petitioner’s Brief at 6.
Florida’s First District Court of Appeal found a taking and invalidated the erosion control line (ECL) established in 2003. The unpublished opinion of the Florida First District Court of Appeal is Save Our Beaches, Inc. v. Florida Dep’t of Envtl. Prot., No. 1D05-4086, 2006 WL 1112700 (July 3, 2006). Up on appeal to Florida’s highest court, the tides turned. In September 2008, the Florida Supreme Court reversed, upholding the application of the beach renourishment program. Walton County v. Stop the Beach Renourishment, Inc., 998 So. 2d 1102 (Fla. 2008).
In June 2009, the U.S. Supreme Court granted the petition for writ of certiorari. Petitioner argues that the Florida Supreme Court’s decision constituted a judicial taking because it was a “sudden and dramatic change in state law” and urges the Court to adopt a new per se category of taking—a judicial taking—which was first articulated by Justice Stewart in his concurring opinion in Hughes v. Washington, 389 U.S. 290 (1967), but never explicitly adopted by the Court. Justice Stewart suggested that a judicial taking might occur when a judicial ruling “constitutes a sudden change in state law, unpredictable in terms of relevant precedents . . . .” Id. at 296.
The Court’s decision will certainly impact the work of Section members, whether representing the public or private sectors. Twenty-one amicus briefs have been filed (thirteen supporting petitioners and eight supporting respondents). All of the amicus briefs are accessible online at www.scotuswiki.com/index.php?title=Stop_the_Beach_Renourishment%2C_
Inc._v._Florida_Department_of_Environmental_Protection.
Several amici supporting each side agreed to share a brief summary of their arguments with State & Local Law News. Supporting petitioner are Robert Thomas (Owners’ Counsel of America), Anthony Caso (Center for Constitutional Jurisprudence), and Donald Joe Willis (Oregonians in Action). Supporting respondents are John Echeverria (American Planning Association), Gary Oldehoff (Florida Shore and Beach Preservation, et al.), and Julia Wyman (Coastal States Organization).
—Lora Lucero, Editor
Robert H. Thomas
Robert H. Thomas is a Director of Damon Key Leong Kupchak Hastert in Honolulu and chair of the ABA Section of State and Local Government Law’s Condemnation Law Committee. Mr. Thomas drafted an amicus brief on behalf of Owners’ Counsel of America supporting petitioner. Mr. Thomas may be reached at rht@hawaiilawyer.com.
The “judicial takings” question in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Envtl. Prot. boils down to this: can courts “take” property when they change the common law?
Of course they can. The case concerns whether the “background principles” exception to per se takings in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), permits state courts to construe state property law in a manner that threatens to virtually swallow up all regulatory takings. Perhaps more so than state legislatures, state courts may be susceptible to reordering established property norms via abrogation of common law rules, “discovery” of background principles or custom never before enunciated, or expansion of the public trust.
Consider these examples.
In a dispute between two landowners over prescriptive water rights, the Hawaii Supreme Court sua sponte overruled all contrary precedent and adopted the riparian rights doctrine. It also held the state owned, and had the exclusive right, to control a stream’s flow, and thus no prescriptive rights could be established. In other words, in a dispute between “A” and “B” over which of them possessed water rights, the court simply declared “neither does, the State owns it.” Robinson v. Ariyoshi, 753 F.2d 1468 (9th Cir. 1985)
The Oregon Supreme Court held that its rule that dry sand beach areas were public because of previously unrecognized “custom” was not a taking because it “merely enunciated one of Oregon’s ‘background principles of . . . the law of property.’” State ex rel. Thornton v. Hay, 462 P.2d 671 (Or. 1969)
The Hawaii Supreme Court sua sponte redefined the seaward boundary of a Torrens-titled littoral parcel from the high water mark to the “upper reaches of the wash of the waves,” holding the county owed no compensation for the land seaward of the new boundary line because it was owned by the state. County of Hawaii v. Sotomura, 517 P.2d 57 (Haw. 1973), cert. denied, 419 U.S. 872 (1974).
The New Jersey Supreme Court held the privately owned dry sand beach area of littoral property was subject to the public trust, and expanded the geographic scope of the trust from tidelands and navigable waters to the dry beach. Matthews v. Bay Head Improvement Ass’n, 471 A.2d 355 (N.J.), cert. denied, 469 U.S. 821 (1984). Even though the dry beach had traditionally not been subject to the public trust—which extended only to tidelands and navigable waters—the court determined the public needed access over private property in order to exercise its public trust rights.
Similarly, relying on the public trust doctrine, the Hawaii Supreme Court ignored prior precedent regarding construction of property descriptions on the shoreline, which held that private property extended to the “high water mark.” Instead, the court held the description was merely a “natural monument” and not an “azimuth and distances” description, and determined the new land formed when fresh lava met the ocean was public property. State of Hawaii v. Zimring, 566 P.2d 725 (Haw. 1977).
These are but a few of the more well-known examples of a court defining established expectations out of existence.
States have latitude to define “property,” but that authority is not exclusive. State legislative and executive branches are constrained by the U.S. Constitution, which prohibits the rewriting of accepted rules of property to declare that what has always been private is now public. Were the actions of the Florida Supreme Court in this case attributable instead to the Florida legislature or the executive branch, there is little doubt that a taking would be found. The authority of state courts is similarly constrained, as state courts must also abide by federal constitutional limitations. The Fourteenth Amendment’s Due Process Clause incorporates the guarantees of the Fifth Amendment against the states, not merely state legislatures and state executive branches.
Stop the Beach Renourishment presents the U.S. Supreme Court the opportunity to provide definitive guidance that “property” is not a completely malleable term, but rather embodies a core set of normative principles immunized from state court redefinition. The Court has addressed the issue before, although never directly. In Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980), Justice Thurgood Marshall noted:
I do not understand the Court to suggest that rights of property are to be defined solely by state law, or that there is no federal constitutional barrier to the abrogation of common-law rights by Congress or a state government. The constitutional terms “life, liberty, and property” do not derive their meaning solely from the provisions of positive law. They have a normative dimension as well, establishing a sphere of private autonomy which government is bound to respect
Id. at 93 (Marshall, J., concurring).
Common law rules of accretion and erosion are exactly the type of long-standing understandings that the Takings and Due Process Clauses were designed to protect from transfer to the public by a state court or legislature. In Pruneyard, Justice Marshall concurred in the Court’s holding that no judicial taking had occurred, but acknowledged:
Quite serious constitutional questions might be raised if a legislature attempted to abolish certain categories of common-law rights in some general way. Indeed, our cases demonstrate that there are limits on governmental authority to abolish “core” common-law rights, including rights against trespass, at least without a compelling showing of necessity or a provision for a reasonable alternative remedy.
447 U.S. at 93–94 (Marshall, J., concurring).
The nearly universal rules of accretion and erosion have for centuries ensured that riparian and littoral properties remain so, even when the water’s edge shifts naturally over time. In the decision under review, however, the Florida Supreme Court radically altered that ancient balance. To avoid ruling that a Florida statute abrogated rights that had been an established part of Florida law, the court decreed those rights never really existed at all. With the stroke of a pen, the court eliminated the dominant feature of littoral property—continuous contact with the water, wherever the water naturally flows.
When state legislatures and executive agencies attempt to redefine the nature of private property and upset long-standing and settled expectations without first providing compensation, their actions may be invalidated as takings.
The same rule should apply to state courts.
John Echeverria
John Echeverria is professor of law at Vermont Law School and previously served as executive director of the Georgetown Environmental Law & Policy Institute at Georgetown University Law Center. He drafted an amicus brief on behalf of the American Planning Association supporting respondents. Professor Echeverria may be reached at jecheverria@vermontlaw.edu.
Various defects in petitioner’s case may prevent the Supreme Court from resolving Stop the Beach Renourishment on the merits. Petitioner is a nonprofit entity that does not itself own any coastal property; because a takings claimant must own the property allegedly taken in order to bring a claim, petitioner has no valid cause of action. In addition, the Takings Clause is violated only if the government denies compensation when property is taken; but petitioner has never even requested compensation in this case. Finally, the Supreme Court has no jurisdiction to decide petitioner’s claim based on the Beach and Shore Preservation Act because it prosecuted the claim under the state, not the federal, Takings Clause. Given these and other problems, the Supreme Court might well decide, following oral argument, to “dig” the case—dismiss the petition as improvidently granted—and, in effect, award victory to respondents by default.
Assuming, for the sake of argument, that the petitioner overcomes these obstacles, the Supreme Court will have an opportunity to address the “judicial takings” theory—the notion that a state law interpretation of the state common law of property can constitute a taking under the Fifth Amendment. The Supreme Court, in over two hundred years, has never embraced the judicial takings concept and it should, and likely will, reject this revolutionary theory in this case.
The language of the Takings Clause shows why there is no basis for the judicial takings theory. The Takings Clause provides: “Nor shall private property be taken for public use, without just compensation.” While interpretation of the term “taking” clearly presents an issue of federal constitutional law, it is equally clear that the term “property” is not defined by the Constitution but instead is defined by reference to some independent source of law, usually state law. When a state court resolves a question about the content of state law, neither the Supreme Court nor any other federal court has jurisdiction to review and second guess the state court’s ruling.
Under our federal system, consistent with the Tenth Amendment, the state courts, as arms of independent sovereigns, have the final word on the meaning of state law.
“A State’s highest court is unquestionably ‘the ultimate expositor of state law,’ ” and “the prerogative of [a state court] to say what [state] law is merits respect in federal forums.” Riley v. Kennedy, 128 S. Ct. 1970, 1985 (2008), quoting Mullany v. Wilbur, 421 U.S. 684, 691 (1975).
In accord with this reading of the constitutional text, the Supreme Court, over a hundred years ago, rejected the argument that a state court’s resolution of a question of state property law can support a taking claim. See Sauer v. City of New York, 206 U.S. 536 (1907). The case involved a Manhattan property owner claiming that the city’s construction of an elevated viaduct above the street abutting his property resulted in a taking of an easement of access, light, and air. The Court said that the “only question” it had to decide was “whether the property which the plaintiff alleged was taken existed at all.” Id. at 547. The New York Court of Appeals had concluded that “the plaintiff had no such easements,” id., and the Supreme Court, on that basis, rejected the federal taking claim. The Court stated:
Surely such questions [of state law] must be for final determination of the state court. It has authority to declare that the abutting landowner has no easement of any kind over the abutting street; it may determine that he has a limited easement; or it may determine that he has an absolute and unqualified easement. . . . [T]his court has neither the right nor the duty . . . to reduce the law of the various States to a uniform rule which it shall announce and impose.
Id. at 548.
The Supreme Court has cited the Sauer precedent in numerous subsequent cases and has never cast any doubt on its continuing validity.
The judicial takings theory also must be rejected because it involves an impermissible intrusion into the state lawmaking process that is inconsistent with our system of federalism. As Justice Anthony Kennedy explained in Alden v. Maine, 527 U.S. 706 (1999), our federal system preserves the independent sovereign status of the states, in part, by:
reserv[ing] to [the states] a substantial portion of the Nation’s primary sovereignty, together with the dignity and essential attributes inhering in that status. The States “form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere.
Id. at 714, quoting The Federalist No. 39, at 245 (J. Madison) (C. Rossiter ed. 1961). The Court has repeatedly said that the task of defining and developing the basic rules of real property law unquestionably falls within the “sphere” reserved to the states as independent sovereigns. See, e.g., Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 484 (1988). Thus, federal court review of state court rulings on issues of state real property law would directly intrude on the states’ portion of national sovereignty, including “the dignity and essential attributes inhering in that status.”
Lastly, the judicial takings theory is simply unnecessary to address the risk that state courts might issue pretextual rulings on state law issues in order to evade or subvert a federal constitutional right. The Supreme Court, under the Supremacy Clause, can set aside a state court ruling if it lacks a fair or substantial basis and proceed to vindicate the federal right. Howlett v. Rose, 496 U.S. 356 (1990). The fair or substantial argument is available to a property owner who contends that a ruling on an issue of state property law has improperly precluded consideration of a federal taking claim based on some legislative or executive branch action. This well-established and highly deferential legal standard recognizes that state courts are solely responsible for defining the state common law of property, but creates a workable mechanism to ensure that illegitimate state law-making cannot subvert federal constitutional rights.
Anthony Caso
Anthony Caso is a visiting associate clinical professor and director of the Center for Constitutional Jurisprudence at Chapman University School of Law. Mr. Caso drafted an amicus brief on behalf of the Center for Constitutional Jurisprudence supporting petitioner and was assisted by Julianne Lore, an appellate attorney in Juneau, Alaska.
Increasingly, rights in property have come into conflict with public desires to promote environmental goals, redevelopment, and the like. No constitutional right is absolute—and certainly the constitutional rights to property are no different. But, when asked to balance the public desire against the constitutional command for compensation, the Court must make some decision about the relative value to place on the individual right against the public desire to be promoted with the regulation at issue. In the case of the individual right to own and use property, the Court should give effect to the Founders’ vision of rights in property as the cornerstone of all other individual liberties.
In the minds of the Founders, property ownership was so closely associated with liberty that property rights were considered indispensable. The language of the Bill of Rights sharply underscores the Founders’ understanding of the close tie between property rights and other personal liberties. It is of great significance that the Fifth Amendment contains key provisions safeguarding property as well as key procedural protections protecting other individual rights. This arrangement shows that the drafters saw no real distinction between individual liberty and property rights. James W. Ely, Jr., Is Property the Cornerstone of Liberty?, Lecture at Conference on Property Rights at the Alexander Hamilton Institute for the Study of Western Civilization (Apr. 30, 2009), at 5, available at www.theahi.org/storage/Is%20Property%20the%20Cornerstone%20of%20Liberty-March%2011.doc (last visited Aug. 19, 2009).
The founding generation believed that all that liberty encompassed was described and protected by their property rights. Noah Webster explained in 1787: “Let the people have property and they will have power that will forever be exerted to prevent the restriction of the press, the abolition of trial by jury, or the abridgment of many other privileges.” Noah Webster, An Examination into the Leading Principles of the Federal Constitution 58–61 (Oct. 10, 1787). From the beginnings of our country, and always in the minds of the Founders, these rights stood or fell together. Ely, Lecture, at 5. As John Adams noted, “Property must be secured, or liberty cannot exist.” John Adams, Discourses on Davila, in 6 The Works of John Adams 280 (Charles Francis Adams ed. 1851).
While rights in property were considered essential to liberty, those rights could be breached by a simple decision to pay compensation. Compensation was not limited to physical confiscation, but included other injuries to property interests as well. Early state judicial opinions reflected this concern. In 1816, Chancellor Kent required payment to a landowner suffering only indirect, consequential damages (a reduction in value). Gardner v. Trustees of the Vill. of Newburgh, 2 Johns. Ch. 162, 162 (N.Y. Ch. 1816). In 1841, the Connecticut Supreme Court further developed the protection for property rights ruling that owners were entitled to just compensation for damage to private property. Hooker v. New Haven and Northampton Co., 14 Conn. 146, 1841 WL 343, at *11 (Conn. 1841).
The issue in this case is whether these rights can be breached by judicial opinion. Although state legislation and executive action are all involved in the damage to the property rights at issue, it was the Florida Supreme Court that decided to remove the constitutional protection for littoral rights from the waterfront property owners in Florida. As noted in the dissenting opinion of Justice Lewis in the Florida Supreme Court, “In this State, the legal essence of littoral or riparian land is contact with the water. Thus, the majority is entirely incorrect when it states that such contact has no protection under Florida law.” Walton County v. Stop the Beach Renourishment, Inc., 998 So. 2d 1102, 1122 (Fla. 2008) (Lewis, J. dissenting). Notwithstanding this long settled understanding that the littoral rights flow from the property’s connection to the water, the Florida Supreme Court ruled that Florida property owners no longer have a constitutionally protected property right to maintain contact with the water.
In this case, the U.S. Supreme Court now faces the situation described by Justice Stewart in Hughes v. Washington, 389 U.S. 290 (1967). In his concurring opinion, Justice Stewart noted that
the law of real property is, under our Constitution, left to the individual States to develop and administer. . . . But to the extent that it constitutes a sudden change in state law, unpredictable in terms of the relevant precedents, no such deference would be appropriate. For a State cannot be permitted to defeat the constitutional prohibition against taking property without due process of law by the simple device of asserting retroactively that the property it has taken never existed at all.
Id. at 295–97 (Stewart, J., concurring).
As Justice Stewart recognized, the retroactive redefinition of property rights works no less of a taking than a physical invasion. The U.S. Supreme Court in this case should uphold the individual rights in property by requiring Florida to pay just compensation for the taking.
Gary K. Oldehoff
Gary K. Oldehoff is of counsel to Lewis, Stroud, and Deutsch in Boca Raton, Florida. Mr. Oldehoff presented an amicus brief in this case to the Florida Supreme Court and, later, to the U.S. Supreme Court on behalf of the Florida League of Cities, the Florida Association of Counties, and the Florida Shore and Beach Preservation Association. He may be reached at goldehoff@lsdlaw.net.
Government-sponsored beach restoration prevents catastrophic losses to lives and property, protects and enhances littoral property values, assures that beaches are available to the public, and serves the state’s and the nation’s economies. Beach restoration has been performed all along the coasts of the United States, and it has been the dominant beach protection policy of the State of Florida since the 1980s.
More than 200 miles of Florida beaches have been restored since the 1970s, of which the federal government has participated in approximately 125 miles of beach restoration in the state. Across the country, government-sponsored beach restoration will be seriously jeopardized, and probably even abandoned, if the U.S. Supreme Court rules that the Florida Beach and Shore Preservation Act is unconstitutional.
At issue in this case is Florida’s common law of property—a matter distinctly in the hands of the State of Florida and the Florida Supreme Court. The U.S. Supreme Court has, on numerous occasions, stated that the property rights of owners of littoral land are based on the rules and decisions of the state within whose boundaries the particular land lies. The U.S. Supreme Court has no authority to decide for a state what a state’s law of property is.
The Florida Supreme Court’s decision that the Act does not take littoral property is based on a reasonable judicial analysis and has fair and substantial support in the state’s prior judicial decisions on the law of littoral property and the public trust doctrine. The property interests the petitioners claim were taken by the Act (the right to have future accretion and land that reemerges by reliction, and the right to have their land make constant contact with the water) do not “inhere in the title to the Petitioner’s property itself” under background principles of Florida’s law of property.
Florida’s law of littoral property along the dynamic shoreline is based in large part on the decisions and rulings of the state courts, known as Florida’s “common law,” which often entails a balancing of competing perspectives and interests. Unlike statutes and constitutions that change only when the legislature or electorate make the change, the common law is generally fluid. Legal academics explain that “[t]he rules and principles of [the common law] have never been treated as final truths, but as working hypotheses, continually retested in those great laboratories of the law, the courts of justice.”
In reaching its decision in this case, the Florida Supreme Court engaged in a judicial analysis typical of a court engaging in such a search for the most doctrinally and legally sound answer to the issues of law presented. The court considered its existing common law rules and decisions on the law of property associated with the shoreline, the public trust doctrine and its expression in the Florida Constitution, and the law of property regarding the reemergence of land that results from a public work, such as a beach restoration project.
In particular, the court examined the validity of petitioners’ contention that they have a private property right to have their property line make constant contact with the water and concluded that even under past common law precedents there is no recognized littoral property right to have constant contact with the water. What littoral property owners have is a right to access, not contact.
The Florida Supreme Court also examined whether littoral property owners have a compensable right to receive future accretion and reliction on a critically eroded beach or when government restores a beach destroyed by an avulsive event and found that littoral property rights associated with future accretion and reliction are contingent rights that are not applicable to beaches that can be restored under the Act. The law recognizes the state’s right to reclaim the lost land by means like the restoration projects associated with the Act, the Court concluded.
In Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), the U.S. Supreme Court explained that a state court decision rejecting a takings claim based on new analysis or an extension of existing precedents, should be based on “an objectively reasonable application of relevant precedents.” The question in this case is whether the Florida Supreme Court’s decisions on the law are “without any fair or substantial support.” The Florida Supreme Court’s decision that the Act fairly and legitimately expresses the state’s law of property is based on “an objectively reasonable application of relevant precedents” and has “fair or substantial support.” There is nothing analytically, doctrinally, or intellectually dishonest about the Florida Supreme Court’s judicial analysis and reasoning in this case.
Furthermore, from a fairness perspective, the amount spent by government directly for the benefit of the upland owner and the immediate and lasting benefits that directly accrue to the upland owner are more than just compensation for beach restoration’s effects on any private property interests. The average cost of a mile of reconstructed beach in Florida is between $3 million and $5 million, simply for the initial restoration. The government continues to spend money over the period of the project to maintain and renourish the beach. A littoral property owner who, before the restoration, was presented with the clear and present danger of losing his or her property and any structures thereon to the sea, is no longer at risk. The owner’s property value increases, and the cost to insure the property decreases.
The stakes in this case are extremely high. The beach renourishment program in Florida, and also in the United States, effectively will be eliminated if the U.S. Supreme Court decides that states must pay takings damages to every private property owner along a beach that the state, the federal government, or a local government attempts to restore. Governments simply cannot afford to condemn or pay takings damages for the supposed property rights associated with this case, and the public will not support government-sponsored beach restoration if littoral property owners must be paid to restore the beach.
Donald Joe Willis
Donald Joe Willis practices law with Schwabe, Williamson & Wyatt in Oregon. He and Jill S. Gelineau were trial counsel for the Dolan family on remand of Dolan v. City of Tigard from the U.S. Supreme Court. They drafted an amicus brief for Oregonians in Action Legal Center supporting petitioner, Stop the Beach Renourishment, Inc. Mr. Willis may be reached at
jwillis@schwabe.com.
Oregonians in Action (OIA) brings the Oregon experience to the case, beginning with that seminal decision, Dolan v. City of Tigard, 512 U.S. 374 (1994), in which the U.S. Supreme Court explained how regulatory takings differ from those in which the government winds up with an actual interest in the property. The court noted: “the conditions imposed [on Mrs. Dolan’s property] were not simply a limitation on the use petitioner might make of her own parcel, but a requirement that she deed portions of the property to the city.” Id. at 385. The local government in the Florida case actually directed its contractors to invade, without permission, some of petitioners’ property.
Once Florida fixed the Erosion Control Line (ECL), the Beach and Shore Preservation Act operated to transfer legal title of the property seaward of the ECL to the government, transferring a clear and important property right. An upland property owner might be subjected to the state’s regulations for “critically eroded shorelines” even if his parcel is only adjacent to, rather than a part of, an identified critical erosion area, and even if his parcel is stable and not in need of “beach renourishment.” Petitioners’ homes sit on an accreting beach more than 200 feet of dry sand and dunes away from the main high water line. The newly created 75-foot wide public beach seaward of the MHWL provides full public access on a beach where the upland owners previously had exclusive access to the water.
OIA believes this case should be determined based on physical takings principles and the Florida Supreme Court’s decision should be reversed; but the same result should occur even under a regulatory takings analysis, as argued by respondents. The Court must pay particular attention to its instruction in its Dolan opinion that “we see no reason why the Takings Cause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation in these comparable circumstances.” Dolan, 512 U.S. at 392.
Florida’s statute provides for emergencies, but those provisions were not before the court. The Florida Supreme Court’s description of the purpose of the Act is to promote “the public’s economic, ecological, recreational and aesthetic interest in the shoreline.” The court emphasized a state constitutional duty to protect Florida’s beaches and a claim of benefit to private owners based on the Act. Its final conclusion, however, was only that the Act facially achieved a reasonable balance between public and private interests in the shoreline. The Florida Supreme Court did not evaluate a regulatory takings analysis using appropriate federal jurisprudential standards. Most notably, Penn Central Trans. Co. v. New York City, 438 U.S. 104 (1978), requires an ad hoc factual inquiry, including the owner’s reasonable investment-backed expectations. The great vice in what the Florida Supreme Court has done is simply to tell property owners who assert a Penn Central reasonable investment-backed expectations takings claim that they are now charged with knowledge of unprecedented and unpredictable changes in the court’s common law and therefore cannot rely on the status of even century-old law.
The U.S. Supreme Court must clarify and limit the notion in some of its prior opinions that a statutory scheme of general applicability might strongly support a government justification sufficient to withstand a takings attack. In Florida, the application of the beach renourishment program was not so general. Only beachfront property owners and only those who were then included within the areas designated as critically eroded were affected. Only truly broad-based generally applicable regulations should weigh into the mix of a regulatory takings analysis.
OIA also directed the Court’s attention to judicial history in shorelines in the State of Oregon, starting with State ex rel. Thornton v. Hay, 462 P.2d 671 (1969). There the Oregon Supreme Court rejected the basis on which the case was originally tried and creatively applied the “custom” of using the dry sands area of the beach from one end of the state to the other to declare them public. The court did this notwithstanding the fact that at least some critical elements of the law of custom were missing. McDonald v. Halvorson, 780 P. 2d 714 (1989), casts doubt on the Thornton enunciation of custom applying to beachfront property from one end of the state to the other.
In Hay v. Bruno, 344 F. Supp. 286 (D. Or. 1972), a three-judge panel in federal district court upheld the decision in Thornton and subsequent legislation, deciding that Justice Stewart’s concurrence in Hughes v. State of Washington, 389 U.S. 290 (1967), in which he would prohibit sudden changes in state law unpredictable in terms of their relevant precedents, was inapplicable.
Finally, in Stevens v. City of Cannon Beach, 854 P.2d 449 (Or. 1993), the Oregon Supreme Court again sustained a doctrine of custom to allow public use of all dry sand areas, citing McDonald, and in doing so left open the application of the doctrine of custom for access and use to even inland areas. The U.S. Supreme Court declined to grant certiorari in Stevens, but Justices Scalia and O’Connor dissented, suggesting that had there been a factual record the Court may have taken review of the case. Stevens v. City of Cannon Beach, 510 U.S. 1207 (1994). The Florida case provides a sufficient record.
The Oregon Supreme Court’s opinion in Stevens rejected the holding of the U.S. Supreme Court in Borax Consol., Ltd. v. City of Los Angeles, 296 U.S. 10, 22–27 (1935), even though it acknowledged that Borax may have extended seaward the record ownership of upland landowners. The court then claimed it was apparently little noticed by Oregonians and had no discernible effect on the actual practices of Oregon beachgoers and upland property owners. That is a slender reed on which to ignore a U.S. Supreme Court precedent and demonstrates that the Oregon Supreme Court’s opinions in Hay and Stevens were result-driven and contained serious flaws, just as the Florida Supreme Court’s decision in the current case.
Julia Wyman
Julia Wyman is an attorney and policy analyst at the Coastal States Organization (CSO) in Washington, D.C. Ms. Wyman and Richard Frank, executive director of the Center for Law, Energy & the Environment at the University of California, Berkeley School of Law, drafted the amicus brief on behalf of CSO. Ms. Wyman can be reached at jwyman@coastalstates.org.
The Coastal States Organization (CSO) was established in 1970 to represent the governors of the nation’s thirty-five coastal states, commonwealths, and territories regarding legislative and policy issues related to the sound management of coastal, Great Lakes, and ocean resources. CSO has a vested interest in maintaining the vibrancy and longevity of the nation’s coasts.
One of the greatest threats facing the nation’s coastal inhabitants and resources is climate change. CSO’s amicus brief focuses on the need for states to determine the most appropriate management tool to address climate change threats, specifically the interrelated threats of sea level rise, coastal erosion, and increased storm intensity and frequency. The brief offers scientific, engineering, and policy background on the ramifications of these emerging threats to America’s coasts and explains the responsibility of states to protect proactively against such threats and their well-established authority to do so under long-standing federal and state law precedent.
First, the brief discusses the importance of the nation’s coastal areas to the ecology and economy of the nation. The United States is a nation built on the coasts and relies heavily on them for food, recreation, jobs, wildlife habitat, transport of goods, and climate control. The coasts also serve as home to the majority of Americans: in 2003, it was estimated that 53 percent of the population of the United States lived in coastal counties. Coastal counties in the United States produce more than 40 percent of the nation’s economic output, contributing five times more to the gross domestic product than the financial sector. In 1995, 85 percent of overall tourism revenues were generated in coastal states. Florida’s reliance on its coastal economy is an example of the importance of state coastal economies to both state economies and the national economy.
Second, the brief explores how climate change adversely affects the nation’s coasts and how it threatens the ecologic and economic resources of the United States. Climate change is a serious threat to the nation, and both the Court and Congress have begun to address it as such. The Court recognized the significant impacts associated with climate change in its landmark decision in Massachusetts v. EPA, 549 U.S. 497 (2007). As early as 1978, Congress also acknowledged climate change by enacting the National Climate Program Act of 1978 to “assist the Nation and the world to understand and respond to natural and man-made climate processes and their implications.” Pub. L. No. 95-367, 92 Stat. 601 (1978). In 1987, Congress enacted the Global Climate Protection Act, directing the Secretary of State to coordinate U.S. global climate change diplomacy and the Environmental Protection Agency (EPA) to develop and propose to Congress a coordinated national policy on the issue. Title XI of Pub. L. No. 100-204, 101 Stat. 1407, note following 15 U.S.C. §§ 2901. Although climate change will affect the nation as a whole, the impacts of climate change on the coasts will be especially numerous and complex.
Three phenomena will be particularly troubling to the coasts: sea level rise, erosion, and increased storm intensity and frequency. The changing climate is causing sea levels to rise in two ways: warmer ocean waters take up greater volume and melting glaciers and ice fields increase the aggregate quantity of water in the oceans. Higher sea levels interact with tides and storms to create more destructive impacts on the shoreline, which causes increased erosion. In turn, erosion wears away at beaches and bluffs along the shorelines, undermining waterfront homes, businesses, and public facilities, eventually rendering them uninhabitable or unusable. Every year, erosion of U.S. shorelines destroys about 1,500 homes and causes approximately $530 million in damage. In fact, the Federal Emergency Management Agency (FEMA) estimates that by 2060, coastal erosion will threaten nearly 87,000 homes and other buildings in coastal areas in the nation. There is also increasing evidence that sea level rise and warming seas increase hurricane intensity and frequency. Since hurricanes need a sea-surface temperature of at least 79 degrees Fahrenheit to form, an increase of sea-surface temperatures above this threshold will result in more frequent and more intense hurricanes.
These natural disasters threaten the environment and economy of the nation, and are the costliest natural events in the United States. States have been entrusted with the management of the nation’s coasts and Florida acted properly to protect its citizens and the nation as a whole.
The CSO amicus brief shares well-established federal and state law that provides that states, as sovereigns, determine a state’s ownership in land and water. As the climate continues to change, allowing states to best decide the tools that serve their needs for managing their coastal lands and waters will become more and more essential for the continued prosperity of the states and the nation. Florida acted within its sovereign right to protect its interest and the interests of the nation as a whole, through its Beach and Shore Preservation Act.
